State Consumer Disputes Redressal Commission
Prasad Shri Jagdish Agarwalla vs Ltd. United India Insurance Co on 12 April, 2003
IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION MEGHALAYA: SHILLONG CONSUMER APPEAL NO.17(M) OF 1997 Shri Jagdish Prasad Agarwalla P.O. Tura Dist: West Garo Hills Meghalaya ........ Appellant -Vs- United India Insurance Co. Ltd. 24 Whites Road Chennai, represented by its Branch Manager, Tura Branch Tura (Meghalaya) .......... Respondent B E F O R E THE HON'BLE MR. JUSTICE N.S. SINGH, PRESIDENT THE LEARNED MEMBER SHRI R.K. BAWRI THE LEARNED MEMBER SMT. A.S. RANGAD For the Appellant :Shri A.K. Das Shri S.P. Sharma Shri M.F. Qureshi, Advocates For the Respondent :Smt. T. Yangi, Advocate Date of Order :12.4.2003 O R D E R
R.K. Bawri, Member- The facts of the case in brief are that the Complainant/Appellant, Shri Jagdish Prasad Agarwalla insured his residential house situated at Mankachar with the Respondent Insurance Co. vide Insurance Cover Note No.130203/11/11/00627/90 dated 30.3.90 (hereinafter Cover Note No.00627) for an amount of Rs.3,00,000/- for one year. On 20.4.90 a devastating accidental fire broke out at Mankachar resulting in the gutting of a portion (measuring 50 ft. x 20 ft.) of a residential building belonging to the Appellant, which according to him was the building covered by the Cover Note No.00627. The Appellant duly intimated the Insurance Co. about the fire and resultant loss and made a claim on 23.4.90 for compensation of loss/damage sustained in the said fire. The Insurance Co. deputed Surveyors who visited the spot and the Complainant furnished necessary documents to them. However, the Insurance Co. rejected the claim of the Complainant on the basis of the survey report vide letter dated 5.3.91 issued by Insurance Co.'s Guwahati Divisional Office, contending that the claim of the Complainant was inadmissible under the conditions of the Insurance Policy. The Insurance Co. again informed the Appellant vide their letter dated 16.4.91 that the claim was inadmissible as no loss was assessed by the Surveyors. For making good the loss the Appellant initially filed a Title Suit in the Civil Court at Tura as there was no functional District Forum at Tura at that point of time. Thereafter the Complainant filed Complaint Petition No.4/94 before the District Forum, Tura and withdrew the Civil Suit. The claim before the District Forum was for Rs.1,62,000/-, together with interest at 20% per annum and due compensation for mental agony and harassment.
2. Before the District Forum the Insurance Co. resisted the claim of the Complainant on the grounds interalia that (a) there was no damage to the insured premises; (b) the claim was repudiated following thorough enquiry and deliberation; (c) the Surveyor too had recommended for repudiation of the claim and (d) remedy should have been sought in a Civil Court because of the complexities of the claim and not before the District Forum. The Insurance Co. further stated that the residential house actually insured was elsewhere and totally unaffected by the fire on 20.4.90.
3. Having examined several witnesses and perused the documents filed by both sides and upon hearing both the parties, vide its order dated 9.12.96 the District Forum arrived at the following findings: (a) that there indeed was a fire on 20.4.90 at New Market, Mankachar
(b) that the properties involved in the fire were one cotton godown and one dwelling house (c) that the Complainant was in possession of a valid Insurance Policy for Rs.3,00,000/- for a residential house (d) that the Insurance Co. had appointed a surveyor and had repudiated the claim on the basis of his report dated 5.3.91.
4. In the view of the District Forum the key document in this case was the original declaration made by the Complainant in the Proposal Form for Insurance dated 17.3.89 while obtaining the policy. In column 6(a) of the said declaration, the Complainant had declared that the building was "attached with similar nature of building contained (sic:containing) similar nature of household goods". There was no mention of the insured residential house being adjoined to a godown which the Insurance Co. termed as suppression of relevant information by the Complainant and repudiated the claim.
The District Forum further found that the address/ description given in the proposal form about the insured house as "Mankachar, Dhubri, Assam"
was too vague. In the light of the foregoing, the District Forum observed that the claim did not relate to deficiency of service but to the conflicting versions about the residential house actually insured and held that the case needed a comprehensive trial interalia on comparing the interpretation of the contract entered into by the Insurance Policy; the address/description of the house insured; the quantum of compensation for damages which was never assessed by the Insurance Company on account of violation of the terms of contract. The District Forum advised the Complainant to seek suitable remedy in a Civil Suit and did not make any judgement on the merits of the case.
5. Being aggrieved by the order dated 9.12.96 passed by the District Forum the Complainant as Appellant has come before this Commission in Appeal and we have heard the learned Counsels for both the Appellant and the Respondent Insurance Co. As is natural, the learned Counsel for the Appellant wants that the order passed by the District Forum be set aside and his claim allowed while the learned Counsel for the Respondents want us to dismiss the Appeal.
6. Now, as regards the decision of the District Forum relegating the Complainant to the Civil Court instead of disposing of the case on merits by itself we find that the Complaint was filed on 21.7.94 and was disposed of by the District Forum on 9.12.96 i.e. after more than 2 years during which period issues were framed, evidence was adduced by both parties and several witnesses were examined and cross-examined and the matter was heard at length. The Forum studied the relevant documents and statements of the witnesses, applied its mind to the arguments of both parties and even came to certain findings which we have referred to above. As such we cannot conceive as to what it is that the Civil Court could do in deciding the matter which the Forum could not do, inasmuch as from the records we find that it is not a case where highly complicated facts are involved but is a rather simple case which hinges on a decision on a simple issue which we shall shortly discuss.
7. Having applied our mind to the issue, we are of the opinion that the impugned order of the Forum relegating the Complainant to the Civil Court for redressal of his grievances was not justified under the circumstances of the case and the Forum ought to have decided the Complaint on merits by itself on the basis of the evidence already before it. We have taken the same view in Consumer Appeal No.16(M) 1997 which is also a case between the same parties and is being simultaneously disposed by us today. There we have given detailed reasons for reaching the above conclusion and the same reasons hold good here too.
8. In the same breath and applying the same yardstick to ourselves we also do not think it would be proper on our part to remand the case to the District Forum for disposal as it is already long - delayed and, in any case, all the evidence is before us and the matter has been argued and heard at length. We therefore propose to finally dispose of the matter ourselves.
9. Coming now to the merits of the Appeal, as can be deduced from the Surveyor's letter dated 28.10.94 addressed to the Insurance Co. which is on record, the Appellant had two separate residential buildings both located in the town of Mankachar. One was affected by the fire while another was not. The contention of the Appellant is that the gutted building was the one that was covered by the related Insurance Cover Note No.00627 while the Surveyors and Insurance Co. contended that it was actually the unaffected building which was covered by this Cover Note. We find that this confusion has arisen particularly because neither the proposal form not the Insurance Cover Note gives exact details of the location of the building such as Number, Street or Ward except to generally mention the name of the town i.e. Mankachar. The area of the building too is not given. This has created a needless controversy for which both parties are responsible.
10. Therefore, at the very outset, before entering into the merits of this Appeal, we would like to state it is the duty of the Respondents to ensure that all Insurance Policies/Cover Notes issued by them mention details of the insured property with sufficient clarity in order to avoid needless litigation and, for this purpose, if full particulars are not made available by the Insured Party to insist on the same before accepting the proposal. We hope and trust that the Respondents shall, in future, take particular care in this regard.
11. However, we are of the view that this long-drawn matter has to be resolved one way or the other and this task which has fallen upon us although seemingly complicated and difficult can perhaps be sorted out by delving a little deep into the records, documents and other evidence available before us, coupled with a sprinkling of permissible logic and deduction on our part. The crux of the matter is to decide on the basis of the evidence before us, whether the building insured by the Complainant was the one that was destroyed in the fire on 20.4.90.
12. Since the location of the insured building as contained in the Cover Note is vague, and gives us no definite clue, in our opinion, the key to the final resolution of the controversy is to find out:
a) Whether the details of construction of the building as stated in the Cover Note No.00627 match with the construction of the building that was gutted by fire.
b) Whether the gutted building was attached to another building as should be the case according to the Proposal Form dated 17.3.89 submitted by the Appellant.
13. We find from the case records of the District Forum that the Appellant had initially submitted a Proposal Form for Fire Insurance to the Insurance Co. on 17.3.1989 for insuring his Residential Building Super-Structure for a sum of Rs.3.00 lacs, showing the location of the building as Mankachar, (Dist) Dhubri, Assam and the construction of the Building as follows: (i) External Walls built of :Partly Brick, partly Cement plastered, partly C.I. Sheets (ii) External Roof built of: C.I. Sheets. In answer to the question whether the building was detached and, if not, the construction and occupation particulars of the adjoining buildings, the Appellant stated in the Proposal Form: "Attached with similar nature of Building contained similar nature of household goods".
14. Based on this proposal the Insurance Co. issued an Insurance Policy bearing No.130203/11/11/01533/89 dated 21.7.89 for the period from 17.3.89 to 16.3.90, showing the residential building to be of class `A' Construction and situated at Mankachar. Thereafter, upon receipt of fresh premium on 30.3.90 the Insurance Co. issued a fresh Cover Note dated 30.3.90 bearing No.130203/11/11/00627/90 (referred to as Cover Note No.00627) for a sum of Rs.3.00 lacs containing the following particulars:
"On residential Building of Class `A' Construction (with walls of partly Brick, partly Cement plaster, partly C.I. Sheet, Roof- C.I. Sheet) and whilst situated at Mankachar, Dhubri, Assam and declared for insurance as under: on Building -Rs.3,00,000/-".
15. We may mention here that Fire Insurance Policy in proper form which normally follows the issuance of a Cover Note by the Insurance Co. has neither been produced by the Insurance Co. nor the Appellant either before the District Forum or before this Commission and has apparently not been issued by the Insurance Co.
16. The Appellant has contended that it was this insured residential building covered by Cover Note No.00627 referred to above that was gutted by Fire on 20.4.90 and that he accordingly lodged his claim with the Insurance Co. who deputed Shri K.Deb, Surveyors to survey the loss. The findings of the Surveyors contained in their Report dated 5/12/90 are very brief viz: "There is no loss to the above mentioned claim. Hence the Insurance has no liability". As stated before, the first repudiation letter dated 5.3.91 issued by the Insurance Co. stated that the claim was not admissible under the conditions of the policy, based on a careful scrutiny of the Survey Report and the second repudiation letter dated 16.4.91 stated that the claim was rendered inadmissible as no loss was assessed by the Surveyor.
17. We however also find that after the Complainant filed the complaint before the District Forum on 21.7.94 the Surveyor, Shri Kantimoy Deb , issued a letter dated 28.10.94 to the Divisional Manager of the Insurance Co. as an addendum to his Survey Report stating as follows:
"There was a fire just near the residence of the claimant in a godown owned by the insured. But there was no loss at the residence of the insured as it was far away from the spot of fire. Even there was no damages due to smoke, spraying of water to extinguish the fire. The insured's godown had two part under the same roof which was insured under Policy No.130203/11/11/00628/90. One part was used as godown whereas the other part was used for residential purpose. The loss in both the part was shown in the report under Policy No.11/11/00628/90. But the insured at the time of survey insisted to treat that portion (i.e. the residential portion) under Policy No.11/11/00627/90. The undersigned did not comply with the request of the insured considering that to be an unjust one. Besides this the insured also failed to substantiate any loss under the Policy No.11/11/627/90 and hence the report was given accordingly."
18. To fully understand the import of the Surveyor's aforesaid letter dated 28.10.94, it needs to be mentioned here that the Appellant had also separately insured his Godown -cum- residence at Mankachar with the same Insurance Co. vide another proposal dated 30.3.90 which was insured by the Insurance Co. vide separate Cover Note No.130203/11/11/00628/90 (hereinafter referred to as Cover Note No.00628) dated 30.3.90. This godown-cum-residence having been gutted by the same fire on 20.4.90, the Appellant filed a separate claim with the Insurance Co. which was repudiated for separate reasons leading the Appellant to file another Complaint Petition No.3/94 before the District Forum Tura. This Petition having been turned down by the Forum, the Appellant filed Appeal No.16(M) 97 before this Commission and this Appeal was heard by us analogously with the instant Appeal and is being simultaneously disposed by us today. The records of Appeal No.16(M) 97 are therefore before us and will help us in deciding the present Appeal.
19. The Fire Survey Report in respect of the claim under Cover Note No.00628 which was also submitted by Shri Kantimoy Deb, Surveyor and is available in the records of Appeal No.16(M) 97 clearly states that the walls of the Building that was gutted by the fire were made of C.I. Sheets. This is corroborated by the Fire Report No.6-2(4) 90 dated 20.4.90 issued by the Director, Assam Fire Service Force, Assam, Guwahati, which was filed by the Appellant himself and is available in the records of this Appeal. The Fire Report too shows that the walls of the building that was involved in the fire were made of C.I. Sheets. On the other hand, as mentioned by us earlier, the walls of the building that was insured under Cover Note No.00627 were, on the own admission of the Appellant, made partly of brick, partly cement plaster and partly C.I. Sheet. From this clinching difference itself it is obvious that the building insured and the building gutted were not one and the same.
20. Further, it is evident from the Proposal Form submitted by the Appellant in respect of the Insurance under Cover Note No.00628 that the building that was involved in the fire was "Detached" from other buildings because in answer to Question No.6 (Is the building detached? If not, give construction and occupation particulars of adjoining buildings.) the Answer given by the Appellant was "Yes".
However, as seen by us earlier, the building insured by the Appellant under Cover Note No.00627 with which we are presently concerned, was "attached" with another similar type of building, as stated by the Appellant himself in the Proposal Form.
This material difference also goes to show that the insured building was not the one that was involved in the fire.
21. Lastly, it only remains to state and make it clear that, as evident from the Fire Report dated 20.4.90 as well as the Affidavits filed by the Appellant himself there were not two separate fires at two separate places but only at one location.
22. The above discussion therefore leads us to the inevitable conclusion that the residential house which was insured by the Appellant vide the related Insurance Cover Note No.00627 dated 30.3.90 was not the one that was involved in the fire incident. As such the Insurance Company was right in repudiating the claim of the Appellant and that there was neither any negligence nor any deficiency on the part of the Insurance Co.
In the result we find that the Appeal is devoid of any merit and we therefore dismiss the same. No costs.
Member Member President